Welcome to Eureka Street

back to site


America after Roe v Wade

  • 05 July 2022
The overruling of the Roe v Wade decision by the Supreme Court in the Dobbs decision marks a significant moment in the abortion debate, while highlighting the deep fissures in America’s body politic.

The Supreme Court ruled that ‘The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment’.

Leaving aside for the moment the abortion issue, it should be acknowledged that the Roe v Wade decision of 1973 was always problematic from a legal perspective, in that for many, the judges indulged in a constitutional overreach so as to establish’ a constitutional right’ to abortion. The late Justice, Ruth Bader Ginsburg, an articulate advocate of abortion, was critical of the Roe v Wade decision, even saying in 2012 that it was a ‘most undemocratic decision’ in that nine unelected judges effectively made policy. For many conservatives the Dobbs decision is primarily about the nature of the American Constitution and the role of judges in shaping public policy.

Despite the fact that the Supreme Court ruling had been foreshadowed months ago, the shock has been real. It is not the first-time previous rulings had been overturned; both the Dred Scott and Plessy ruling which, to their shame had upheld slavery and segregation, were overturned more than fifty years later. In 1973 the decision of nine rather elderly white men changed overnight the abortion landscape, by a ruling that from the beginning has been problematic constitutionally.

The Dobbs decision heralds a new stage in the abortion debate. The editors of America, a Jesuit publication, put the case ‘that as a constitutional matter, the regulation of abortion is primarily a question for state legislatures; as a moral matter, unborn human life has sacred dignity and is deserving of legal protection; and finally, as a political matter, the complicated and divisive questions surrounding abortion cannot be effectively addressed when the only real venue for the issue is in the Supreme Court.’  The Supreme Court decision accords with this perspective.

  'The reversal of the Roe v Wade decision does not ban abortion, but rather gives over abortion legislation to the fifty American States.'

The reversal of the Roe v Wade decision does not ban abortion, but rather gives over abortion legislation to the fifty American States: ‘It is time to heed